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6 - The Role of Moral, Policy, and Empirical Propositions in Legal Reasoning, and the Judicial Adoption of New Legal Rules Based on Social Propositions

Published online by Cambridge University Press:  22 September 2022

Melvin A. Eisenberg
Melvin A. Eisenberg
Affiliation:
University of California, Berkeley
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Summary

The common law is based on doctrinal and social propositions. Doctrinal propositions purport to state legal rules that the legal profession regards as legal doctrine. Social propositions are propositions of social morality, social policy, and empirical propositions. The two types of propositions do different work. Doctrinal propositions are legal rules; social propositions are the reasons for legal rules. A common law rule is justified only if it is supported by social propositions. The kind of morality that is relevant to legal reasoning is social or conventional morality, that is, moral norms that are rooted in aspirations for the community as a whole and that have substantial support in the community. When policy is relevant to legal reasoning, the kinds of policies that are relevant are social policies – policies that have substantial support in the community or about which there is reason to conclude that they would be conducive to public welfare.

Keywords

doctrinal propositionssocial propositionssocial moralitysocial policy
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Chapter
Information
Legal Reasoning , pp. 41 - 59
Publisher: Cambridge University Press
Print publication year: 2022

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